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Ks Formation
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- 1Offera manifestation of willingness to enter into a bargain so made as to justify another person in understanding that her assent to that bargain is invited and will conclude it.
- 2Elements of an Offer1. Three requirements to establish an offer: (1) intent; (2) definiteness; and (3) communication to the offeree.
- 3Offer - Intent elementobjective test of intent, modern cases require that one look not only at the words used by the purported offeror, but also at all of the surrounding circumstances to determine whether a reasonable person in the position of the purported offeree would understand that the offeror intended to be bound.
- 4Can an offer be oral or implied by conduct?(1) Offers can be oral, written, or implied by conduct.
- 5Offer - Definiteness Elementb) Definiteness - if the terms of their purported agreement are not reasonably certain, no contract will result.
- 6Kinds of Indefiniteness under an offer(a) The parties purport to agree on a material term but leave it too indefinite or vague (indefinite term).
(b) The purported agreement is silent on a material term (omitted term).
(c) The parties agree to later agree on a material term (agree to agree). - 7Offer - Communication to the offeree(2) Ordinarily one party, by making an offer, assents in advance; the other, upon learning of the offer, assents by accepting it and thereby forms the contract. The offer may be communicated directly or through an agent; but information received by one party that another is willing to enter into a bargain is not necessarily an offer.
(a) The test is whether the offer is so made as to justify the accepting party in a belief that the offer is made to him. - 8Can a person act w/o knowledge to an offer?A person who acts without knowledge of an offer is not within the scope of the offer.
- 9Can there be an offer of a performance in exchange for the offeree's promise?(3) Although normally an offer will be for an exchange of promises or a promise for an act, sometimes there is an offer of a performance in exchange for the offeree's promise.
- 10Will a ct supply ommitted terms if the ct believes parties did intend to K?(1) Modern courts are far more willing to supply omitted terms if they are satisfied that the parties did intend to enter into a contract.
- 11How definite do the terms of a K need to be?(3) The terms of a contract are reasonably certain if they provide a basis for determining a breach and for giving an appropriate remedy.
- 12What happens if an offer leaves out too many terms open?(4) If the offer leaves too many terms open, however, it may indicate that a manifestation of intent to contract was not present and no offer exists.
- 13Can an offer be valid if it does not specify the time for performance?(5) Valid offers are often made that don't specify the time for performance.
- 14Will other terms besides performance, price, and delivery terms, if indefinite prove offer was not intended?(6) An offer may be indefinite as to other aspects than time of performance, price and delivery terms. The greater the uncertainty and importance of the omission, the more likely that no offer was intended. See Restatement § 33, comment f.
- 15What if offerror failed to communicate the offer to the offeree? Is there an offer?(1) In fact, failure of the offeror to communicate the offer to the offeree may indicate that no offer exists in the circumstances. 1-1 Corbin on Contracts § 1.15.
- 16Can someone else besides the offeree accept the offer?an offer only creates the power of acceptance in the offeree and not in other third parties. Restatement § 35.
- 17What is the process of an offer?(3) Ordinarily one party, by making an offer, assents in advance; the other, upon learning of the offer, assents by accepting it and thereby forms the contract.
- 18Can an offer be communicated to the offeree indirectly?The offer may be communicated directly or through an agent
- 19Is there an offer if one party is willing to enter into a K?information received by one party that another is willing to enter into a bargain is not necessarily an offer.
- 20Can an individual get a reward for some act w/o the knowledge of the offer?4) Rewards offered by governmental bodies are treated differently, however, and an offer is made to individuals who respond without knowledge of the offer. See Restatement § 23, comment c.
- 21Is a promise for a gratuity an offer?No.
- 22What is Acceptance?manifestation of mutual assent
- 23How does manifestation of assent take place?1. By one party (the offeror) making an offer to another party (the offeree)
2. which the offeree accepts - 24What three things constitute an acceptance?1. acceptance by the offeree of the terms of the offer
2. Acceptance must be made in the manner invited or required by the offeror; AND
3. the acceptance must occur while the offer is still open - 25Is the acceptance effective if the offer has already been revoked?NO.
- 26What do you need for the first element of acceptance? Acceptance by the offeree to the terms of the offer.1) there must be a commitment
2) the commitment must NOT be conditional
3) The commitment must be on the terms proposed w/o variation - 27Does the offeror have to be clear in the way in which he wants to restrict the manner of the acceptance to the offeree?Yes, if they want limitations to be enforced; they must be clear.
- 28Sometimes the offer does not specify the manner of acceptance, what happens then?the offeree can accept in any manner reasonable under the circumstances
- 29How does an offer become irrevocable?Beginning performance as a method of acceptance would ordinarily create an option K making the offer irrevocable.
- 30Does the beginning of performance as a method for acceptance operate as a promise to render complete performance?Yes. Tender or beginning of the invited performance or a tender of a beginning of it is an acceptance by performance and such acceptance operates as a promise to render complete performance.
- 31Why can the offer be restricted as to the form of acceptance dictated in an offer?Because the offeror is the master of the offer
- 32Can a third party accept an offer not directed to them?No. An offer can only be accepted by the person or persons to whom it is addressed.
- 33Can a person accept when they have no knowledge of the offer?NO.
- 34What if A and B send each other offers via mail with identical terms, can there be acceptance? [A1]No. Because an offer cannot be accepted w/o knowledge of its existence.
- 35What if one party creates a reasonable understanding in the other that an offer or acceptance exists? [A1]In this case, yes. The reasonable understanding will be protected.
- 36Can acceptance exist if the offeree remains silent?Ordinarily, no.
- 37What are the exceptions where the offeree's silence would constitute acceptance?1. taking benefit of the offer
2. prior conduct of the offerree giving the offeror reason to believe silence would be acceptance
3. exercise of dominion over goods
4. where the offer states that the offer may be accepted by silence and the offeree remains silent w/ intention of accepting
5. where the offeree allows the offeror to confer a benefit on the offeree knowing that the offeror expects payment therefore - 38Is there acceptance when offeree remains silent, receives goods, and exercises dominion over them even though the offeree does not intend to accept?Yes.
- 39What happens to acceptance when the offer is rejected?It terminates the power of acceptance.
- 40What is a rejection?A manifestation of the offeree of intention not to accept the offer
- 41Why does the power acceptance terminate because of rejection to the offer?An offeror who receives a rejection is likely to rely on it.
- 42Is an inquiry regarding the possibility of different terms, a request for a better offer, or a comment on the terms of the offer a rejection of the original offer?NO.
- 43What is a counter-offer?A new offer made by offeree to the offeror on the same subject matter and also rejects the original offer.
- 44Does the counter-offer terminate the original offer?Yes sir, and the original offer can no longer be accepted.
- 45It is possible that the counter-offer did not terminate the original offer?Very unlikely, but if it does happen there must have been a contrary intention was manifested by the counter-offer.
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- Fichas sobre Ks Formation, creado por francis.vazquez5 el 04/09/2015.
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